Senator DeLuca and Lieutenant Governor Denn

Delaware Liberal has a decent overview of the issue regarding Delaware Senate Pro-Tem Tony DeLuca and whether or not the good Senator is holding office illegally. The issue isn’t new, but DL does a nice job laying out the overall points. The post can be found here.

In that post, the following is written:

The Delaware Supreme Court issued an opinion holding that a public officer of the state may either serve in a position that makes the laws, or a position that enforces the laws.

What is glossed over, is the answer to the question “why?” Why did the Delaware Supreme Court issue an advisory opinion on the matter of a Republican State Trooper running for a State Representative office? The following is a quote from the Court’s opinion:

To: The Honorable Thomas R. Carper, Governor of the State of Delaware:

In your letter of October 16, 1998, you respectfully requested the opinions of the Justices regarding the following question “touching the proper construction” of the Constitution of Delaware:

Does an individual having been appointed a police officer of the Delaware State Police pursuant to 11 Del.C. § 8301 hold an “office under this State” for the purposes of Article II, § 14 of the Constitution of the State of Delaware? 1

The answer to why the Supreme Court issued an opinion is that Democratic Governor Tom Carper asked whether a Republican candidate was eligible to serve both as a Trooper and as a Representative should he win election. There is a strong argument to be made that Senator DeLuca’s job in Labor Law Enforcement is similar enough to Trooper Salter’s job in Criminal Law Enforcement as to make Senator DeLuca unfit for his Senate service. Delaware Liberal later comments:

Why then, you may ask, is DeLuca still where he is? IMHO, the answer is that no one with standing has yet brought this issue before the court.

Delaware Liberal also points out but glosses over that the Lieutenant Governor actually advised the Court on the decision, being asked to argue for the affirmative side of the question. The following is from the Court’s opinion

Matthew P. Denn of Young, Conaway, Stargatt & Taylor, L.L.P., and Professor Lawrence A. Hamermesh (argued) of Widener University School of Law, Wilmington, appointed pro bono publico to advocate the affirmative position on the question presented.

So, the Lieutenant Governor, who sits at the right hand of the Governor and who served as legal counsel to Governor Minner, has intimate knowledge of the law in question. In addition, he is presiding over the body, serving as President of the Senate, in which Senator DeLuca serves as Pro Tem. Matt Denn sits at the fulcrum of this issue, yet the Lieutenant Governor has not asked the Court for a ruling. And this surprises the bloggers at Delaware Liberal?

Delaware Liberal has done a decent job laying out the details in the Salter decision. But, they close their post with a passive “no one has done anything,” when they should have made the accurate, but bold statement, “Lieutenant Governor Denn, do your job.”

Once again, before anyone starts pointing fingers at Lt. Gov. Denn for perceived culpable inaction, one should read the 1934 en banc Superior Ct. opinion in State ex rel. Biggs v. Corley, 172 A. 415 (Del. Super. 1934). That opinion pretty clearly holds that neither the Lt. Gov., the Gov., or even the courts have the power to declare a legislative seat “vacant” because of an incumbent’s violation of the “incompatibility” provision in Art. II, sec. 14 of the State Constitution. So Denn (in his role as President of the Senate) can’t kick DeLuca out of his legislative seat. I also suspect that the justices of the DE Supreme Court would decline to offer any advisory opinion on DeLuca’s seat in light of the 70 year old Corley ruling that tells the courts to keep their hands off the question of who continues to be qualified to hold a legislative seat because of the incompatibility prohibition.

Nowhere in my post do I suggest that the Lieutenant Governor should declare anything. So, your arguing something that I didn’t say or write.

However, the Lieutenant Governor is the President of the Senate and someone with an intimate knowledge of the Salter case; therefore, he is absolutely the correct person to ask the Supreme Court for an opinion — or he should request that the Governor do it.

As to your supposition that the court would decline to offer an opinion, one won’t know until one asks. So ask he should…